RONALD ALLAN POE a.k.a. FERNANDO POE, JR., protestant, vs.

GLORIA MACAPAGAL-ARROYO,
protestee.

P.E.T. CASE No. 002. March 29, 2005

FACTS:

Past midnight, in the early hours of June 24, 2004, the Congress as the representatives of the sovereign
people and acting as the National Board of Canvassers, in a near-unanimous roll-call vote, proclaimed
Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the Philippines. She obtained
12,905,808 votes, as against 11,782,232 votes for the second-placer, the movie actor Fernando Poe, Jr.
(FPJ). She took her Oath of Office before the Chief Justice of the Supreme Court on June 30, 2004.

Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election
protest before this Electoral Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer
with Counter Protest on August 5, 2004. As counsels for the parties exchanged lively motions to rush the
presentation of their respective positions on the controversy, an act of God intervened. On December
14, 2004, the Protestant died in the course of his medical treatment at St. Lukes Hospital.

However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a
fortuitous intervening event, appears to abate the present controversy in the public arena. Instead,
notice may be taken of periodic mass actions, demonstrations, and rallies raising an outcry for this
Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all.

Together with the formal Notice of the Death of Protestant, his counsel has submitted to the Tribunal,
dated January 10, 2005, a MANIFESTATION with URGENT PETITION/MOTION to INTERVENE AS A
SUBSTITUTE FOR DECEASED PROTESTANT FPJ, by the widow, Mrs. Jesusa Sonora Poe claiming that
because of the untimely demise of her husband and in representation not only of her deceased husband
but more so because of the paramount interest of the Filipino people, there is an urgent need for her to
continue and substitute for her late husband in the election protest initiated by him to ascertain the true
and genuine will of the electorate in the 2004 elections.

In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias and subsequent cases
including analogous cases decided by the House of Representatives Electoral Tribunal (HRET), asserts
that the widow of a deceased candidate is not the proper party to replace the deceased protestant since
a public office is personal and not a property that passes on to the heirs.

Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the Rules
of the Presidential Electoral Tribunal, only the registered candidates who obtained the 2nd and 3rd
highest votes for the presidency may contest the election of the president and patently, Mrs. FPJ did not
receive the 2nd and 3rd highest votes for she was not even a candidate for the presidency in the
election that is being contested.

Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions of
surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over
election protests and quo warranto cases.
ISSUE: May the widow substitute/intervene for the protestant who died during the pendency of the
latter’s protest case?

RULING: NO.

The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules.

Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this
express enumeration, the rule makers have in effect determined the real parties in interest concerning
an on-going election contest. It envisioned a scenario where, if the declared winner had not been truly
voted upon by the electorate, the candidate who received that 2nd or the 3rdhighest number of votes
would be the legitimate beneficiary in a successful election contest.

This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for the
analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and the
decision of the electoral tribunals.

Rule 3, Section 16 is the rule on substitution in the Rules of Court. This rule allows substitution by a legal
representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to appear
before this Tribunal as the legal representative/substitute of the late protestant prescribed by said
Section 16. However, in our application of this rule to an election contest, we have every time ruled that
a public office is personal to the public officer and not a property transmissible to the heirs upon death.
Thus, we consistently rejected substitution by the widow or the heirs in election contests where the
protestant dies during the pendency of the protest.

Motion of movant/intervenor is DENIED for lack of merit.

Legarda vs. De Castro

Facts:
Loren B. Legarda filed an election protest against Noli L. de Castro before the Presidential
Electoral Tribunal (PET). De Castro filed a motion for its outright dismissal but the PET
confirmed its jurisdiction over the protest. De Castro filed a motion for reconsideration assailing
the PET resolution. He argues that where the correctness of the number of votes is the issue,
the best evidence are the ballots; that the process of correcting the manifest errors in the
certificates of canvass or election returns is a function of the canvassing bodies; that once the
canvassing bodies had done their functions, no alteration or correction of manifest errors can
be made; that since the authority of the Tribunal involves an exercise of judicial power to
determine the facts based on the evidence presented and to apply the law based on the
established facts, it cannot perform the ministerial function of canvassing election returns; that
the averments contained in the protest are mere conclusions of law which are inadequate to
form a valid cause of action; and that the allegations are not supported by facts. He also
contends that the Tribunal cannot correct the manifest errors on the statements of votes (SOV)
and certificates of canvass (COC).

Issues:
1. Can the PET correct the manifest errors in the SOV and COC?
2. Is there a need to resort to revision of ballots?
3. Was the election protest sufficient in form and substance?

Held:
1. The constitutional function as well as the power and the duty to be the sole judge of all
contests relating to the election, returns and qualification of the President and Vice-President is
expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the
duty to correct manifest errors in the SOVs and COCs.
2. We agree that the ballots are the best and most conclusive evidence in an election contest
where the correctness of the number of votes of each candidate is involved. However, we do
not find any reason to resort to revision in the first part of the protest, considering that the
protestant concedes the correctness of the ballot results, concerning the number of votes
obtained by both protestant and protestee, and reflected in the election returns. Protestant
merely seeks the correction of manifest errors, that is, errors in the process of different levels
of transposition and addition of votes. Revision of ballots in case of manifest errors, in these
circumstances, might only cause unwarranted delay in the proceedings.
3. In the instant protest, protestant enumerated all the provinces, municipalities and cities
where she questions all the results in all the precincts therein. The protest here is sufficient in
form and substantively, serious enough on its face to pose a challenge to protestee's title to his
office. The instant protest consists of alleged ultimate facts, not mere conclusions of law, that
need to be proven in due time.
Considering that we find the protest sufficient in form and substance, we must again stress that
nothing as yet has been proved as to the veracity of the allegations. The protest is only
sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case
pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots,
nothing herein prevents the Tribunal from allowing or including the correction of manifest
errors, pursuant to the Tribunals rule-making power under Section 4, Article VII of the
Constitution. (Legarda vs De Castro, P.E.T. Case 0003, March 31, 2005)
ATTY. ROMULO B. MACALINTAL v. PRESIDENTIAL ELECTORAL TRIBUNAL (G.R. No. 191618; NOVEMBER
23, 2010)

Facts:

Confronting us is an undesignated petition[1] filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section

4,[2] Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does
allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC[4] which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction of
the PET,

Issues: Whether the creation of the Presidential Electoral Tribunal is unconstitutional for being a
violation of paragraph 7, Section 4 of Article VII of the 1987 Constitution

Whether the designation of members of the supreme court as members of the presidential electoral
tribunal is unconstitutional for being a violation of Section 12, Article VIII of the 1987 Constitution

HELD:

First Issue: Petitioner, a prominent election lawyer who has filed several cases before this Court
involving constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),cannot claim
ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2)
the unanimous holding thereon. Unquestionably, theoverarching frameworkaffirmed inTecson v.
Commission on Electionsis that the Supreme Court has original jurisdiction to decide presidential and
vice-presidential election protests while concurrentlyacting as an independent Electoral Tribunal.

Verba legisdictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. However, where there is ambiguity or doubt, the words of the Constitution
should be interpreted in accordance with the intent of its framers orratio legis et anima. A doubtful
provision must be examined in light of the history of the times, and the condition and circumstances
surrounding the framing of the Constitution. Last,ut magis valeat quam pereat the Constitution is to be
interpreted as a whole.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has
functions peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of
Section 4, Article VII of the Constitution, and it faithfully complies not unlawfully defies the
constitutional directive. The adoption of a separate seal, as well as the change in the nomenclature of
the Chief Justice and the Associate Justices into Chairman and Members of the Tribunal, respectively,
was designed simply to highlight the singularity and exclusivity of the Tribunals functions as a special
electoral court. the PET, as intended by the framers of the Constitution, is to be an institution
independent,but not separate, from the judicial department,i.e., the Supreme Court.

Second Issue: It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case
ofAngara v. Electoral Commission,Justice Jose P. Laurel enucleated that "it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels." In fact,Angarapointed out that "[t]he Constitution is a definition of the powers
of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of
judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution. DENIED.
JOSEPH ESTRADA v. ANIANO DESIERTO

G.R. No. 146710, Mar. 2, 2001

FACTS:

Petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President.

Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused
the petitioner, his family and friends of receiving millions of pesos from jueteng lords.

House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate
President. Speaker Villar was unseated by Representative Fuentebella.

Senate formally opened the impeachment trial of the petitioner. 21 senators took their oath as judges
with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.

When by a vote of 11-10 the senator-judges ruled against the opening of the 2nd envelope which
allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under
the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President. By midnight, thousands had assembled at the
EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the 11 senators.

January 18, 2001 saw the high velocity intensification of the call for petitioner's resignation. A 10-km line
of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala
Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's
resignation.

January 19, 2001, the fall from power of the petitioner appeared inevitable. Petitioner agreed to the
holding of a snap election for President where he would not be a candidate. Secretary of National
Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to
the EDSA Shrine. General Angelo Reyes declared that "on behalf of Your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this
government.” A little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.

January 20, 2001 Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines. Petitioner and his family hurriedly left Malacañang Palace.

January 22, 2001, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency.

February 5, 2001, petitioner filed with this Court a petition for prohibition with a prayer for a writ of
preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further
proceedings in any other criminal complaint that may be filed in his office, until after the term of
petitioner as President is over and only if legally warranted."

February 6, 2001, Thru another counsel, petitioner filed for Quo Warranto. He prayed for judgment
"confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring respondent to have taken her
oath as and to be holding the Office of the President, only in an acting capacity pursuant to the
provisions of the Constitution."

ISSUES:

Whether or not the petitioner resigned as president.

Whether or not petitioner Estrada is a President on leave while respondent Arroyo is an Acting
President.

HELD:

Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The
validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal
effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and
omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

An examination of section 11, Article VII is in order. It provides:

Whenever the President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary, such powers and duties shall
be discharged by the Vice-President as Acting President xxx.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability
of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by
a co-equal branch of government cannot be reviewed by this Court.
Public Interest Center vs. Elma

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not during his tenure be appointed as members of the Constitutional Commissions, or the Office
of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries. (Art. VII, 1987
Constitution)

Sec. 7. No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
(Art. IX-B, 1987 Constitution)

Facts:

Elma was appointed as Chairman of the PCGG on 30 October 1998. Thereafter, during his tenure as
PCGG Chairman, he was appointed as Chief Presidential Legal Counsel (CPLC). He accepted the second
appointment, but waived any renumeration that he may receive as CPLC.

Petitioner questions Elma's concurrent appointments as PCGG Chairman and CPLC. They contend that
the appointments contravene Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987
Constitution. Petitioners also maintained that respondent Elma was holding incompatible offices.

Elma alleged that the strict prohibition against holding multiple positions provided under Section 13,
Article VII of the 1987 Constitution applies only to heads of executive departments, their
undersecretaries and assistant secretaries; it does not cover other public officials given the rank of
Secretary, Undersecretary, or Assistant Secretary.

He also claimed that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be applied in
his case. This provision, according to him, would allow a public officer to hold multiple positions if (1) the
law allows the concurrent appointment of the said official; and (2) the primary functions of either
position allows such concurrent appointment. Since there exists a close relation between the two
positions and there is no incompatibility between them, the primary functions of either position would
allow respondent Elma's concurrent appointments to both positions. He further add that the
appointment of the CPLC among incumbent public officials is an accepted practice.

Issues:

1. Can the PCGG Chairman concurrently hold the position of CPLC?

2. Is the strict prohibition under Section 13, Article VII of the 1987 Constitution applicable to the PCGG
Chairman or to the CPLC?

3. Does the ruling that the concurrent appointments as PCGG Chairman and CPLC are unconstitutional,
for being incompatible offices, render both appointments void?

4. Is there a need to refer the case to the Court en banc?

Held:

1. No. The concurrent appointment to these offices is in violation of Section 7, par. 2, Article IX-B of the
1987 Constitution, since these are incompatible offices. An incompatibility exists between the positions
of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial
legal advice on the actions of the heads of various executive departments and agencies and to review
investigations involving heads of executive departments and agencies, as well as other Presidential
appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the
actions of the PCGG Chairman are subject to the review of the CPLC. As CPLC, respondent Elma will be
required to give his legal opinion on his own actions as PCGG Chairman and review any investigation
conducted by the Presidential Anti-Graft Commission, which may involve himself as PCGG Chairman. In
such cases, questions on his impartiality will inevitably be raised. This is the situation that the law seeks
to avoid in imposing the prohibition against holding incompatible offices.

2. The strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the
PCGG Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the latter positions.

Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to the
present case, the defect in respondent Elma's concurrent appointments to the incompatible offices of
the PCGG Chairman and the CPLC would even be magnified when seen through the more stringent
requirements imposed by the said constitutional provision. The said section allows the concurrent
holding of positions only when: (1) provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice-President to become a member of the Cabinet; or (2) the second post is required by
the primary functions of the first appointment and is exercised in an ex-officio capacity [which denotes
an act done in an official character, or as a consequence of office, and without any other appointment or
authority than that conferred by the office]. Although respondent Elma waived receiving renumeration
for the second appointment, the primary functions of the PCGG Chairman do not require his
appointment as CPLC.
Appointment to the position of PCGG Chairman is not required by the primary functions of the CPLC,
and vice versa. The primary functions of the PCGG Chairman involve the recovery of ill-gotten wealth
accumulated by former President Ferdinand E. Marcos, his family and associates, the investigation of
graft and corruption cases assigned to him by the President, and the adoption of measures to prevent
the occurrence of corruption. On the other hand, the primary functions of the CPLC encompass a
different matter, that is, the review and/or drafting of legal orders referred to him by the President. And
while respondent Elma did not receive additional compensation in connection with his position as CPLC,
he did not act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate
appointment had to be made for respondent Elma to qualify as CPLC negates the premise that he is
acting in an ex-officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent
Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant
secretary. Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent
Elma, he still could not be appointed concurrently to the offices of the PCGG appointments in question
are not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still prohibited
under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility
between the primary functions of the offices of the PCGG Chairman and the CPLC. (Public Interest
Center vs. Elma, G. R. No. 138965, June 30, 2006)

3. The ruling that the concurrent appointments as PCGG Chairman and CPLC are unconstitutional, for
being incompatible offices, does not render both appointments void. Following the common-law rule on
incompatibility of offices, respondent Elma had, in effect, vacated his first office as PCGG Chairman
when he accepted the second office as CPLC.

4. There also is no merit in the respondents’ motion to refer the case to the Court en banc. What is in
question in the present case is the constitutionality of respondent Elma’s concurrent appointments, and
not the constitutionality of any treaty, law or agreement. The mere application of constitutional
provisions does not require the case to be heard and decided en banc. (Public Interest Center vs. Elma,
G.R. No. 138965, March 5, 2007)
Marcos v. Manglapus (G.R. No. 88211)

October 27, 1989 | 177 SCRA 668

FACTS:

On September 15, 1989, the SC voted 8-7 to dismiss the petition of the Marcos family to allow the
return of former President Ferdinand Marcos from Honolulu, Hawaii to the Philippines. The Court held
that President Corazon Aquino did not act arbitrarily with grave abuse of discretion in determining that
the return of former President Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare.

The decision affirmed the constitutionality of President Corazon Aquino's prior refusal, fearing the
instability and security issues that may arise once the remains of former President Marcos were to be
brought back to the country. In a statement, she said:

"In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately
conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E.
Marcos will not be allowed to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide."

Hence, this Motion for Reconsideration.

ISSUES:

1. Whether or not President Aquino has the power to deny the return of Marcos' remains.

2. Whether or not President Aquino's refusal to allow the return of Marcos' remains is tantamount to
dictatorship.

HELD: 1.Yes. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on the Executive Department
and in scattered provisions of the Constitution.

This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific power of the President, particularly those relating to the commander-
in-chief clause, but not a diminution of the general grant of executive power. Among the duties of the
President under the Constitution, in compliance with his (or her) oath of office, is to protect and
promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in
compliance with this bounden duty.

2. No, the residual powers of the President under the Constitution should not be confused with the
power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6. Whereas
the residual powers of the President under the 1987 Constitution are implied, Amendment No. 6 of the
1973 Constitution refers to an express grant of power.

SARMIENTO v. MISON (G.R. No. 79974)

December 17, 1987 | 156 SCRA 549

Ulpiano P. Sarmiento III and Juanito G. Arcilla, petitioners

Salvador Mison, in his capacity as Commissioner of the Bureau of Customs, and Guillermo Carague, in
his capacity as Secretary of the Department of Budget, respondents

FACTS:

In 1987, then President Corazon Aquino appointed Salvador Mison as Commissioner of the Bureau of
Customs without submitting his nomination to the Commission on Appointments. Herein petitioners,
both of whom happened to be lawyers and professors of constitutional law, filed the instant petition for
prohibition on the ground that the aforementioned appointment violated Section 16, Art. VII of the1987
Constitution. Petitioners argued that the appointment of a bureau head should be subject to the
approval of the Commission on Appointments.

ISSUE:

Whether or not the appointment of bureau heads should be subject to the approval of the Commission
on Appointments.

HELD:

No, construing Section 16, Art. VII of the 1987 Constitution would show that the President is well within
her authority to appoint bureau heads without submitting such nominations before the Commission on
Appointments. In its ruling, the SC traced the history of the confirmatory powers of the Commission on
Appointments (which is part of the legislative department) vis-a-vis the appointment powers of the
President.

 Under Section 10, Art. VII of the 1935 Constitution, almost all presidential appointments required the
consent or confirmation of the Commission on Appointments. As a result, the Commission became very
powerful, eventually transforming into a venue for horse-trading and similar malpractices.
 On the other hand, consistent with the authoritarian pattern in which it was molded and remolded by
successive amendments, the 1973 Constitution placed the absolute power of appointment in the
President with hardly any check on the part of the legislature.

Under the current constitution, the Court held that the framers intended to strike a "middle ground" in
order to reconcile the extreme set-ups in both the 1935 and 1973 Constitutions. As such, while the
President may make appointments to positions that require confirmation by the Commission on
Appointments, the 1987 Constitution also grants her the power to make appointments on her own
without the need for confirmation by the legislature.

Section 16, Art. VII of the 1987 Constitution enumerates four groups of public officers:

 heads of the executive departments, ambassadors, other public ministers and consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this constitution;

 all other officers of the Government whose appointments are not otherwise provided for by law;

 those whom the President may be authorized by law to appoint; and

 officers lower in rank whose appointments the Congress may by law vest in the President alone.

According to the Court, only the presidential appointments of the first group of public officers are
subject to the confirmation by the Commission on Appointments. A review of the deliberations would
show that bureau heads have been deleted from the first group, precisely because they are lower in
rank as compared to other officers enumerated in the same group.

Therefore, Mison's appointment as Commissioner of the Bureau of Customs need not be confirmed by
the Commission on Appointments.
Pimentel, Jr. vs Ermita, 472 SCRA 587

Facts: President Arroyo issued appointments to respondents as acting secretaries of their respective
departments without the consent of the Commission on Appointments, while Congress is in their regular
session.

Subsequently after the Congress had adjourned, President Arroyo issued ad interim appointments to
respondents as secretaries of the departments to which they were previously appointed in an acting
capacity.

Petitioners senators assailing the constitutionality of the appointments, assert that “while Congress is in
session, there can be no appointments, whether regular or acting, to a vacant position of an office
needing confirmation by the Commission on Appointments, without first having obtained its consent.

Respondent secretaries maintain that the President can issue appointments in an acting capacity to
department secretaries without the consent of the Commission on Appointments even while Congress is
in session.

EO 292, which devotes a chapter to the President’s power of appointment. Sections 16 and 17, Chapter
5, Title I, Book III of EO 292 read:

SEC. 16. Power of Appointment. — The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws.

SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily designate an
officer already in the government service or any other competent person to perform the functions of an
office in the executive branch, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of illness, absence or any
other cause; or (b) there exists a vacancy[.]

Issue: WON the President can issue appointments in an acting capacity to department secretaries while
Congress is in session.

Held: Yes. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent occupant to
the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of
a department secretary, the President must necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice could assume office.
The office of a department secretary may become vacant while Congress is in session. Since a
department secretary is the alter ego of the President, the acting appointee to the office must
necessarily have the President’s confidence. Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity a person of her choice even while Congress is
in session.

Ad interim appointments and acting appointments are both effective upon acceptance. But ad-interim
appointments are extended only during a recess of Congress, whereas acting appointments may be
extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are not submitted to
the Commission on Appointments. Acting appointments are a way of temporarily filling important
offices but, if abused, they can also be a way of circumventing the need for confirmation by the
Commission on Appointments.

The absence of abuse is readily apparent from President Arroyo’s issuance of ad interim appointments
to respondents immediately upon the recess of Congress, way before the lapse of one year.

Note: Can Congress impose the automatic appointment of the undersecretary?

Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego.

The power to appoint is essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the Constitution expressly allows it to
interfere. Limitations on the executive power to appoint are construed strictly against the legislature.
The scope of the legislature’s interference in the executive’s power to appoint is limited to the power to
prescribe the qualifications to an appointive office. Congress cannot appoint a person to an office in the
guise of prescribing qualifications to that office. Neither may Congress impose on the President the duty
to appoint any particular person to an office.
GANZON VS CA

G.R. No. 93252 August 5 1991

FACTS:

Ganzon, after having been issued three successive 60-day of suspension order by Secretary of Local
Government, filed a petition for prohibition with the CA to bar Secretary Santos from implementing the
said orders. Ganzon was faced with 10 administrative complaints on various charges on abuse of
authority and grave misconduct.

ISSUE:

Whether or not the Secretary of Local Government (as the alter ego of the President) has the authority
to suspend and remove local officials.

RULING:

The Constitution did nothing more, and insofar as existing legislation authorizes the President (through
the Secretary of Local Government) to proceed against local officials administratively, the Constitution
contains no prohibition. The Chief Executive is not banned from exercising acts of disciplinary authority
because she did not exercise control powers, but because no law allowed her to exercise disciplinary
authority.

In those case that this Court denied the President the power (to suspend/remove) it was not because
that the President cannot exercise it on account of his limited power, but because the law lodged the
power elsewhere. But in those cases in which the law gave him the power, the Court, as in Ganzon v.
Kayanan, found little difficulty in sustaining him.

We reiterate that we are not precluding the President, through the Secretary of Interior from exercising
a legal power, yet we are of the opinion that the Secretary of interior is exercising that power
oppressively, and needless to say, with a grave abuse of discretion.
As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor
Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to
make, to all intents and purposes, his suspension permanent.

KILUSANG MAYO UNO vs. NEDA Case Digest

G.R. No. 167798, April 19, 2006

BAYAN MUNA vs. ERMITA Case Digest

G.R. No. 167930, April 19, 2006

FACTS: EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, required all government
agencies and government-owned and controlled corporations to streamline and harmonize their
Identification (ID) systems. Under said EO, all government agencies and government-owned and
controlled corporations were ordered to adopt a uniform data collection and format for their existing
identification (ID) systems. Herein petitioners, sought to enjoin the Director-General from implementing
the said EO alleging that it is unconstitutional because it constitutes usurpation of legislative functions
by the executive branch of the government and infringes on the citizen’s right to privacy. Thus, filing
these two consolidated petitions for certiorari, prohibition, and mandamus under Rule 65 of the Rules of
Court, seeking the nullification of Executive Order No. 420 (EO 420).

ISSUES:

1. Whether or not EO 420 is a usurpation of legislative power by the President.

2. Whether or not EO 420 infringes on the citizen’s right to privacy.

RULING:

1. No. The President may by executive or administrative order direct the government entities under
the Executive department to adopt a uniform ID data collection and format. Section 17, Article VII of the
1987 Constitution provides that the "President shall have control of all executive departments, bureaus
and offices." The same Section also mandates the President to "ensure that the laws be faithfully
executed." Certainly, under this constitutional power of control the President can direct all government
entities, in the exercise of their functions under existing laws, to adopt a uniform ID data collection and
ID format to achieve savings, efficiency, reliability, compatibility, and convenience to the public. The
President’s constitutional power of control is self-executing and does not need any implementing
legislation. There are several laws mandating government entities to reduce costs, increase efficiency,
and in general, improve public services. The adoption of a uniform ID data collection and format under
EO 420 is designed to reduce costs, increase efficiency, and in general, improve public services. Thus, in
issuing EO 420, the President is simply performing the constitutional duty to ensure that the laws are
faithfully executed. Clearly, EO 420 is well within the constitutional power of the President to
promulgate. EO 420 is an exercise of Executive power – the President’s constitutional power of control
over the Executive department.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the
President did not make, alter or repeal any law but merely implemented and executed existing laws. EO
420 reduces costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the
implementation of current ID systems of government entities under existing laws. Thus, EO 420 is simply
an executive issuance and not an act of legislation. The act of issuing ID cards and collecting the
necessary personal data for imprinting on the ID card does not require legislation. Private employers
routinely issue ID cards to their employees. Private and public schools also routinely issue ID cards to
their students. Even private clubs and associations issue ID cards to their members. What require
legislation are three aspects of a government maintained ID card system. First, when the
implementation of an ID card system requires a special appropriation because there is no existing
appropriation for such purpose. Second, when the ID card system is compulsory on all branches of
government, including the independent constitutional commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third, when the ID card system requires the collection
and recording of personal data beyond what is routinely or usually required for such purpose, such that
the citizen’s right to privacy is infringed. In the present case, EO 420 does not require any special
appropriation because the existing ID card systems of government entities covered by EO 420 have the
proper appropriation or funding. EO 420 is not compulsory on all branches of government and is not
compulsory on all citizens. EO 420 requires a very narrow and focused collection and recording of
personal data while safeguarding the confidentiality of such data.

2. No. All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing
ID cards in the performance of their governmental functions. There have been no complaints from
citizens that the ID cards of these government entities violate their right to privacy. There have also
been no complaints of abuse by these government entities in the collection and recording of personal
identification data. Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners
cannot show such violation by a mere facial examination of EO 420 because EO 420 narrowly draws the
data collection, recording and exhibition while prescribing comprehensive safeguards. EO 420 applies
only to government entities that already maintain ID systems and issue ID cards pursuant to their
regular functions under existing laws. In the present case, EO 420 does not establish a national ID
system but makes the existing sectoral card systems of government entities like GSIS, SSS, Philhealth and
LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject
of executive issuance under the President’s constitutional power of control over government entities in
the Executive department, as well as under the President’s constitutional duty to ensure that laws are
faithfully executed.

G.R. No. 192935 December 7, 2010

LOUIS “BAROK” C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP.
ORLANDO B. FUA, SR. vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET
AND MANAGEMENT SECRETARY FLORENCIO B. ABAD

FACTS:

Pres. Aquino signed E. O. No. 1 establishing Philippine Truth Commission of 2010 (PTC) dated July 30,
2010.

PTC is a mere ad hoc body formed under the Office of the President with the primary task to investigate
reports of graft and corruption committed by third-level public officers and employees, their co-
principals, accomplices and accessories during the previous administration, and to submit its finding and
recommendations to the President, Congress and the Ombudsman. PTC has all the powers of an
investigative body. But it is not a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or
render awards in disputes between contending parties. All it can do is gather, collect and assess
evidence of graft and corruption and make recommendations. It may have subpoena powers but it has
no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it
cannot determine from such facts if probable cause exists as to warrant the filing of an information in
our courts of law.

Petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its
functions. They argued that:

(a) E.O. No. 1 violates separation of powers as it arrogates the power of the Congress to create a public
office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize
E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not include the power to create an entirely
new public office which was hitherto inexistent like the “Truth Commission.”

(c) E.O. No. 1 illegally amended the Constitution and statutes when it vested the “Truth Commission”
with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created
under the 1987 Constitution and the DOJ created under the Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past and present, who may be indictable.

Respondents, through OSG, questioned the legal standing of petitioners and argued that:

1] E.O. No. 1 does not arrogate the powers of Congress because the President’s executive power and
power of control necessarily include the inherent power to conduct investigations to ensure that laws
are faithfully executed and that, in any event, the Constitution, Revised Administrative Code of 1987, PD
No. 141616 (as amended), R.A. No. 9970 and settled jurisprudence, authorize the President to create or
form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Ombudsman and the
DOJ, because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.

ISSUES:

1. WON the petitioners have legal standing to file the petitions and question E. O. No. 1;

2. WON E. O. No. 1 violates the principle of separation of powers by usurping the powers of Congress to
create and to appropriate funds for public offices, agencies and commissions;

3. WON E. O. No. 1 supplants the powers of the Ombudsman and the DOJ;

4. WON E. O. No. 1 violates the equal protection clause.

RULING:

The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case.

1. The petition primarily invokes usurpation of the power of the Congress as a body to which they
belong as members. To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the powers of that
institution.

Legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators.

With regard to Biraogo, he has not shown that he sustained, or is in danger of sustaining, any personal
and direct injury attributable to the implementation of E. O. No. 1.

Locus standi is “a right of appearance in a court of justice on a given question.” In private suits, standing
is governed by the “real-parties-in interest” rule. It provides that “every action must be prosecuted or
defended in the name of the real party in interest.” Real-party-in interest is “the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.”

Difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right”
in assailing an allegedly illegal official action, does so as a representative of the general public. He has to
show that he is entitled to seek judicial protection. He has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a “citizen” or “taxpayer.

The person who impugns the validity of a statute must have “a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result.” The Court, however, finds
reason in Biraogo’s assertion that the petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the
attention of this Court in view of their seriousness, novelty and weight as precedents

The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the
President are not limited to those specific powers under the Constitution. One of the recognized powers
of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. The purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry
into matters which the President is entitled to know so that he can be properly advised and guided in
the performance of his duties relative to the execution and enforcement of the laws of the land.

2. There will be no appropriation but only an allotment or allocations of existing funds already
appropriated. There is no usurpation on the part of the Executive of the power of Congress to
appropriate funds. There is no need to specify the amount to be earmarked for the operation of the
commission because, whatever funds the Congress has provided for the Office of the President will be
the very source of the funds for the commission. The amount that would be allocated to the PTC shall be
subject to existing auditing rules and regulations so there is no impropriety in the funding.
3. PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two offices. The function of
determining probable cause for the filing of the appropriate complaints before the courts remains to be
with the DOJ and the Ombudsman. PTC’s power to investigate is limited to obtaining facts so that it can
advise and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land.

4. Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution.

Equal protection requires that all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly
situated individuals in a similar manner. The purpose of the equal protection clause is to secure every
person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state’s duly constituted
authorities.

There must be equality among equals as determined according to a valid classification. Equal protection
clause permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It
is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class.

The classification will be regarded as invalid if all the members of the class are not similarly treated, both
as to rights conferred and obligations imposed.

Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear
mandate of truth commission is to investigate and find out the truth concerning the reported cases of
graft and corruption during the previous administration only. The intent to single out the previous
administration is plain, patent and manifest.

Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label
the commission as a vehicle for vindictiveness and selective retribution. Superficial differences do not
make for a valid classification.

The PTC must not exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations.

The Constitution is the fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all public authority
administered. Laws that do not conform to the Constitution should be stricken down for being
unconstitutional.
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL
insofar as it is violative of the equal protection clause of the Constitution.

David v. Arroyo

Facts:

In February 2006, due to the escape of some Magdalo members and the discovery of a plan (Oplan
Hackle I) to assassinate GMA she declared PP 1017 and is to be implemented by GO 5. The said law was
aimed to suppress lawlessness and the connivance of extremists to bring down the government.
Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time revoked all

permits issued for rallies and other public organization/meeting. Notwithstanding the cancellation of
their rally permit, KMU head Randolf David proceeded to rally which led to his arrest. Later that day, the
Daily Tribune, which Cacho-Olivares is the editor, was raided by the CIDG and they seized and
confiscated anti-GMA articles and write ups. Later still, another known anti-GMA news agency (Malaya)
was raided and seized. On the same day, Beltran of Anakpawis, was also arrested. His arrest was
however grounded on a warrant of arrest issued way back in 1985 for his actions against Marcos. His
supporters cannot visit him in jail because of the current imposition of PP 1017 and GO 5. In March,
GMA issued PP 1021 w/c declared that the state of national emergency ceased to exist. David and some
opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot
be validly declared by the president for such power is reposed in Congress. Also such declaration is
actually a declaration of martial law. Olivares-Cacho also averred that the emergency contemplated in
the Constitution are those of natural calamities and that such is an overbreadth. Petitioners claim that
PP 1017 is an overbreadth because it encroaches upon protected and unprotected rights. The Sol-Gen
argued that the issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the
declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the president’s calling out power,
take care power and take over power.

ISSUE:Whether or not PP 1017 and GO 5 is constitutional.

HELD: The issue cannot be considered as moot and academic by reason of the lifting of the questioned
PP. It is still in fact operative because there are parties still affected due to the alleged violation of the
said PP. Hence, the SC can take cognition of the case at bar. The SC ruled that PP 1017 is constitutional in
part and at the same time some provisions of which are unconstitutional. The SC ruled in the following
way;
Resolution by the SC on the Factual Basis of its declaration

The petitioners were not able to prove that GMA has factual basis in issuing PP 1017 and GO 5. A
reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration
of the events leading to the issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving statements from the
communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the
incidents, GMA was not expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.

Resolution by the SC on the Overbreadth Theory

First and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on their faces’
statutes in free speech cases. The 7 consolidated cases at bar are not primarily ‘freedom of speech’
cases. Also, a plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence.
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered
‘harmful’ and ‘constitutionally unprotected conduct.’ Thus, claims of facial overbreadth are entertained
in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that
‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct.’ Here, the incontrovertible fact remains that PP
1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Resolution by the SC on the Calling Out Power Doctrine

On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC considered the
President’s ‘calling-out’ power as a discretionary power solely vested in his wisdom, it stressed that ‘this
does not prevent an examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of discretion. The SC ruled that
GMA has validly declared PP 1017 for the Constitution grants the President, as Commander-in-Chief, a
‘sequence’ of graduated powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law.
The only criterion for the exercise of the calling-out power is that ‘whenever it becomes necessary,’ the
President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’ And
such criterion has been met.
Resolution by the SC on the Take Care Doctrine

Pursuant to the 2ndsentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be
faithfully executed.) the president declared PP 1017. David et al averred that PP 1017 however violated
Sec 1, Art 6 of the Constitution for it arrogated legislative power to the President. Such power is vested
in Congress. They assail the clause ‘to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction.’ The SC noted that such provision is
similar to the power that granted former President Marcos legislative powers (as provided in PP 1081).
The SC ruled that the assailed PP 1017 is unconstitutional insofar as it grants GMA the authority to
promulgate ‘decrees.’ Legislative power is peculiarly within the province of the Legislature. Sec 1, Article
6 categorically states that ‘[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives.’ To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify GMA’[s exercise of legislative power by issuing
decrees. The president can only “take care” of the carrying out of laws but cannot create or enact laws.

Resolution by the SC on the Take Over Power Doctrine

The president cannot validly order the taking over of private corporations or institutions such as the
Daily Tribune without any authority from Congress. On the other hand, the word emergency
contemplated in the constitution is not limited to natural calamities but rather it also includes rebellion.
The SC made a distinction; the president can declare the state of national emergency but her exercise of
emergency powers does not come automatically after it for such exercise needs authority from
Congress. The authority from Congress must be based on the following:

1 There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration

The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a valid
exercise of the calling out power of the president by the president.
Ampatuan vs. Puno

Facts:

On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Arroyo issued Proclamation
1946, placing “the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state
of emergency.” She directed the AFP and the PNP “to undertake such measures as may be allowed by
the Constitution and by law to prevent and suppress all incidents of lawless violence” in the named
places. Three days later, she also issued AO 273 “transferring” supervision of the ARMM from the Office
of the President to the DILG. She subsequently issued AO 273-A, which amended the former AO (the
term “transfer” used in AO 273 was amended to “delegate”, referring to the supervision of the ARMM
by the DILG).

Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners Datu Zaldy Uy
Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials, filed this petition for
prohibition under Rule 65. They alleged that the President’s proclamation and orders encroached on the
ARMM’s autonomy as these issuances empowered the DILG Secretary to take over ARMM’s operations
and to seize the regional government’s powers. They also claimed that the President had no factual
basis for declaring a state of emergency, especially in the Province of Sultan Kudarat and the City of
Cotabato, where no critical violent incidents occurred and that the deployment of troops and the taking
over of the ARMM constitutes an invalid exercise of the President’s emergency powers. Petitioners
asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional.

The Office of the Solicitor General (OSG) insisted that the President issued Proclamation 1946, not to
deprive the ARMM of its autonomy, but to restore peace and order in subject places. She issued the
proclamation pursuant to her calling out power as Commander-in-Chief. The determination of the need
to exercise this power rests solely on her wisdom. The President merely delegated her supervisory
powers over the ARMM to the DILG Secretary who was her alter ego any way. The delegation was
necessary to facilitate the investigation of the mass killing.
Issues:

1. Whether Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under the
Constitution and The Expanded ARMM Act

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP
and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat,
and Cotabato City

3. Whether or not the President had factual bases for her actions

Held:

1. The principle of local autonomy was not violated. DILG Secretary did not take over control of the
powers of the ARMM. After law enforcement agents took the respondent Governor of ARMM into
custody for alleged complicity in the Maguindanao Massacre, the ARMM Vice‐Governor, petitioner
Adiong, assumed the vacated post on 10 Dec. 2009 pursuant to the rule on succession found in Sec. 12
Art.VII of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional
Assembly, petitioner Sahali‐Generale, Acting ARMM Vice-Governor. The DILG Secretary therefore did
not take over the administration or the operations of the ARMM.

2. The deployment is not by itself an exercise of emergency powers as understood under Section 23 (2),
Article VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places
mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise
extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in
such places is a power that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.

3. The President’s call on the armed forces to prevent or suppress lawless violence springs from the
power vested in her under Section 18, Article VII of the Constitution, which provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the President’s exercise of the above
power, it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated
Bar of the Philippines v. Hon. Zamora, it is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to prevent and suppress lawless violence.
Unless it is shown that such determination was attended by grave abuse of discretion, the Court will
accord respect to the President’s judgment. Thus, the Court said:

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to
call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were
to have any effect at all. x x x.

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of
Maguindanao, Sultan Kudarat and Cotabato City, as well as the President’s exercise of the “calling out”
power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed
under a state of emergency, it follows that the takeover of the entire ARMM by the DILG Secretary had
no basis too.

The imminence of violence and anarchy at the time the President issued Proclamation 1946 was too
grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned.
Progress reports also indicated that there was movement in these places of both high-powered firearms
and armed men sympathetic to the two clans. Thus, to pacify the people’s fears and stabilize the
situation, the President had to take preventive action. She called out the armed forces to control the
proliferation of loose firearms and dismantle the armed groups that continuously threatened the peace
and security in the affected places.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject
places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly
no factual bases, the Court must respect the President’s actions. (Ampatuan vs Puno, G.R. No. 190259,
June 7, 2011)
Fortun vs. Macapagal-Arroyo

Facts:

On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Arroyo issued Proclamation
1946, declaring a state of emergency in Maguindanao, Sultan Kudarat, and Cotabato City. Believing that
she needed greater authority to put order in Maguindanao, on December 4, 2009 President Arroyo
issued Presidential Proclamation 1959 declaring martial law and suspending the privilege of the writ of
habeas corpus in that province. On December 6, she submitted her report to Congress. On December 9,
the Congress, in joint session, convened to review the validity of the President's action. But, two days
later or on December 12 before Congress could act, the President issued Presidential Proclamation
1963, lifting martial law and restoring the privilege of the writ of habeas corpus in Maguindanao.
Petitioners brought the present action to challenge the constitutionality of Proclamation 1959.

Issue:

Is there a need for the Court to review the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus in this case, considering the same
were lifted within a few days after being issued and thus Congress was not able to affirm or maintain the
same based on its own evaluation?

Held:

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the
writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and
validate or invalidate the same. Section 18, Article VII of the 1987 Constitution state:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without any need of a call.

Although the above vests in the President the power to proclaim martial law or suspend the privilege of
the writ of habeas corpus, he shares such power with the Congress. Thus:

1. The Presidents proclamation or suspension is temporary, good for only 60 days;

2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing
to Congress;

3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity; and

4. The Congress, voting jointly, may revoke or affirm the Presidents proclamation or suspension, allow
their limited effectivity to lapse, or extend the same if Congress deems warranted.

It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising
the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise
the power, not only sequentially, but in a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can maintain the same based on its own evaluation
of the situation on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the
Court must allow Congress to exercise its own review powers, which is automatic rather than initiated.
Only when Congress defaults in its express duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The constitutional validity of the Presidents proclamation
of martial law or suspension of the writ of habeas corpus is first a political question in the hands of
Congress before it becomes a justiciable one in the hands of the Court.

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in
fact convened, could act on the same. Consequently, the petitions in these cases have become moot
and the Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ
of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable controversy.
Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege
of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The
military did not take over the operation and control of local government units in Maguindanao. The
President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by
Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period
were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed
with the Court respecting arrests made in those eight days. The point is that the President intended by
her action to address an uprising in a relatively small and sparsely populated province. In her judgment,
the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed
government presence.

In a real sense, the proclamation and the suspension never took off. The Congress itself adjourned
without touching the matter, it having become moot and academic.

The Court has in exceptional cases passed upon issues that ordinarily would have been regarded as
moot. But the present cases do not present sufficient basis for the exercise of the power of judicial
review. (Fortun vs Macapagal-Arroyo, G.R. No. 190293, March 20, 2012)

Gudani vs. Senga

Facts: Senator Rodolfo Biazon invited several senior officers of the AFP, including Gen. Gudani and Col.
Balutan, to appear at a public hearing before the Senate Committee on National Defense and Security to
shed light on the “Hello Garci” controversy. Gudani and Balutan were directed by AFP Chief of Staff Gen.
Senga, per instruction of Pres. Arroyo, not testify before said Committee. On the very day of the hearing,
President Gloria-Macapagal-Arroyo issued Executive Order No. 464 enjoining officials of the executive
department including the military establishment from appearing in any legislative inquiry without her
approval. However, the two testified before the Senate, prompting Gen. Senga to issue an order
directing Gudani and Balutan to appear before the Office of the Provost Marshal General (OPMG) on 3
October 2005 for investigation. The following day, Gen. Gudani was compulsorily retired from military
service. After investigation, the OPMG recommended that the two be charged with violation of Article of
War 65, on willfully disobeying a superior officer. Thus, Gudani and Balutan filed a petition for certiorari
and prohibition seeking that (1) the order of President Arroyo be declared unconstitutional; (2) the
charges against them be quashed; and (3) Gen. Senga and their successors-in-interest or persons acting
for and on their behalf or orders, be permanently enjoined from proceeding against them, as a
consequence of their having testified before the Senate.

Issue:

1. May the President prevent a member of the armed forces from testifying before a legislative inquiry?

2. How may the members of the military be compelled to attend legislative inquiries even if the
President desires otherwise?

3. Does the court-martial have jurisdiction over Gudani considering his retirement last 4 October 2005?

Held:

1. Yes. The President has constitutional authority to do so, by virtue of her power as commander-in-
chief, and that as a consequence a military officer who defies such injunction is liable under military
justice. Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the notion that a contrary
rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the approval of
higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-
chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of
military discipline and the chain of command mandate that the Presidents ability to control the
individual members of the armed forces be accorded the utmost respect. Where a military officer is torn
between obeying the President and obeying the Senate, the Court will without hesitation affirm that the
officer has to choose the President. After all, the Constitution prescribes that it is the President, and not
the Senate, who is the commander-in-chief of the armed forces.

2. At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s
functions is the conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to
interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President
to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did not come to
pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court
is aware that with its pronouncement today that the President has the right to require prior consent
from members of the armed forces, the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by which members of
the military may be compelled to attend legislative inquiries even if the President desires otherwise, a
modality which does not offend the Chief Executive’s prerogatives as commander-in-chief. The remedy
lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the legislative
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There
is considerable interplay between the legislative and executive branches, informed by due deference
and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship;
hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of
behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic
with either the legislative or executive branches. Whatever weakness inheres on judicial power due to
its inability to originate national policies and legislation, such is balanced by the fact that it is the branch
empowered by the Constitution to compel obeisance to its rulings by the other branches of government.

3. An officer whose name was dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were initiated against him before
the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his
case is terminated. Military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he compulsorily retired
on 4 October 2005. (Gudani vs. Senga, GR No. 170165, August 15, 2006)
THE PROVINCE OF NORTH COTABATO, et al . v . THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES, et al .

President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace negotiations
with the Moro Islamic Liberation Front (MILF), asked Prime Minister Mahathir Mohammad to convince
the MILF to continue negotiating with the government. MILF, thereafter, convened its Central
Committee and decided to meet with the Government of the Republic of the Philippines (GRP). Formal
peace talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.) rehabilitation
aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the finalization of
the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to
be signed last August 5, 2008. In its body, it grants ―the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in
addition, has the freedom to enter into any economic cooperation and trade relation with foreign
countries. ―The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the extent of the
territory of the Bangsamoro. It describes it as ―the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region. With regard to governance, on the other hand, a shared
responsibility and authority between the Central Government and BJE was provided. The relationship
was described as ―associative. With the formulation of the MOA-AD, petitioners aver that the
negotiation and finalization of the MOA-AD violates constitutional and statutory provisions on public
consultation, as mandated by Executive Order No. 3, and right to information. They further contend that
it violates the Constitution and laws. Hence, the filing of the petition.

ISSUES:
1) Whether or not the MOA-AD violates constitutional and statutory provisions on public consultation
and right to information 2) Whether or not the MOA-AD violates the Constitution and the laws.

HELD:

The MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large. Intended as a
―splendid symmetry to the right to information under the Bill of Rights is the policy of public disclosure
under Section 28, Article II of the Constitution which provides that subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest. Moreover, the policy of full public disclosure enunciated in above-
quoted Section 28 complements the right of access to information on matters of public concern found in
the Bill of Rights. The right to information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The
policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people‘s right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy. These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the people.
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to provide for ―reasonable safeguards.‖ The
complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving public interest is
not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy. An essential element of these
freedoms is to keep open a continuing dialogue or process of communication between the government
and the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the people‘s will.
Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms. The imperative of a public consultation, as a species of the right to information, is evident
in the ―marching orders‖ to respondents. The mechanics for the duty to disclose information and to
conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No.
3. The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people‘s
participation. One of the three underlying principles of the comprehensive peace process is that it
―should be community-based, reflecting the sentiments, values and principles important to all Filipinos
and ―shall be defined not by the government alone, nor by the different contending groups only, but by
all Filipinos as one community. Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes ―continuing consultations on both
national and local levels to build consensus for a peace agenda and process, and the mobilization and
facilitation of people‘s participation in the peace process.Clearly, E.O. No. 3 contemplates not just the
conduct of a plebiscite to effectuate “continuing” consultations, contrary to respondents’ position that
plebiscite is “more than sufficient consultation.Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to ―conduct regular dialogues with the National Peace
Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as
well as to render appropriate and timely reports on the progress of the comprehensive peace process.
E.O. No. 3 mandates the establishment of the NPF to be ―the principal forum for the Presidential
Adviser on Peace Progress (PAPP) to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the implementation of
the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-
building on peace agenda and initiatives. In fine, E.O. No. 3 establishes petitioners’ right to be consulted
on the peace agenda, as a corollary to the constitutional right to information and disclosure. In general,
the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE exceed those granted to any local government
under present laws, and even go beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however, it would be useful to turn first to a
general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind. Association is referred to in
paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the
last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. The nature of the
―associative relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of ―association in international
law, and the MOA-AD – by its inclusion of international law instruments in its TOR– placed itself in an
international legal context, that concept of association may be brought to bear in understanding the use
of the term ―associative in the MOA-AD. The MOA-AD contains many provisions which are consistent
with the international legal concept of association, specifically the following: the BJE‘s capacity to enter
into economic and trade relations with foreign countries, the commitment of the Central Government to
ensure the BJE‘s participation in meetings and events in the ASEAN and the specialized UN agencies, and
the continuing responsibility of the Central Government over external defense. Moreover, the BJE‘s right
to participate in Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These
provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status
of an associated state or, at any rate, a status closely approximating it. The concept of association is not
recognized under the present Constitution. No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an ―associative‖ relationship with the national government.
Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any
local or regional government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine
State, much less does it provide for a transitory status that aims to prepare any part of Philippine
territory for independence.

Even the mere concept animating many of the MOA-AD‘s provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines.

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.

The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
M OA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that ―[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region.

The BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
―autonomous region in the constitutional provision just quoted, the MOA-AD would still be in conflict
with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of
the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM
during the 2001 plebiscite – Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal – are automatically
part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the ARMM and the above-
mentioned municipalities voted for inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was
their inclusion in the ARMM, not the BJE.

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD
is to be effected. That constitutional provision states: ―The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and development. An
associative arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice, has generally been a
preparation for independence, is certainly not conducive to national unity.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of Instructions from the
President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.

Bayan Muna vs Romulo

G. R. No. 159618, February 01, 2011

Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the International
Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national criminal jurisdictions.” The
serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the
Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals.8 It is reflective of
the increasing pace of the strategic security and defense partnership between the two countries. As of
May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the
first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless
such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a
third country, for the purpose of surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the
other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US
law, the said agreement did not require the advice and consent of the US Senate.

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting
obligations that are either immoral or otherwise at variance with universally recognized principles of
international law.

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of
inter-governmental agreements,” which is an internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.

In another perspective, the terms “exchange of notes” and “executive agreements” have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the President
“sometimes take the form of exchange of notes and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes
be difficult of ready ascertainment. x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding international written contract among nations.

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals
immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x
x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law
principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is a recognition of the primacy and competence of
the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the consent of
the other party, which may desire to prosecute the crime under its existing laws. With the view we take
of things, there is nothing immoral or violative of international law concepts in the act of the Philippines
of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
People vs. Salle

Facts:

In 1991, Salle and Mengote were convicted of the compound crime of murder and destructive arson
before the RTC of Quezon City. Salle and Mengote appealed their case to SC on March 24, 1993.

In 1994, Salle filed an Urgent Motion to Withdraw Appeal. The Court required Salle's counsel, Atty. Ida
May La'o of the Free Legal Assistance Group (FLAG) to verify the voluntariness of the motion.

Atty. La'o manifested that Salle signed the motion without the assistance of counsel on his
misimpression that the motion was necessary for his early release from the New Bilibid Prison following
the grant of a conditional pardon by the President on December 9, 1993. She also stated that Mengote
was also granted conditional pardon and that he immediately left for his province without consulting
her. She prayed that the Court grant Salle's motion to withdraw his appeal.

On March 23, 1994, the Court granted Salle's motion. Mengote, however, did not file a motion to
withdraw appeal.

After taking into consideration Section 19, Article VII of the Constitution which provides that the
President may, except in cases of impeachment or as otherwise provided in the Constitution, grant
pardon after conviction by final judgment, the Court required (1) the Solicitor General and the counsel
for accused-appellants to submit their memoranda on the issue of the enforceability of the conditional
pardon and (2) the Presidential Committee for the Grant of Bail, Release or Pardon to inform the Court
why it recommended to the President the grant of the conditional pardon despite the pendency of the
appeal.

In its Memorandum, the Office of the Solicitor General maintains that the conditional pardon granted to
appellant Mengote is unenforceable because the judgment of conviction is not yet final in view of the
pendency in this Court of his appeal.
On the other hand, the FLAG, through Atty. La'o, submits that the conditional pardon extended to
Mengote is valid and enforceable. Citing Monsanto vs. Factoran, Jr., it argues that although Mengote did
not file a motion to withdraw the appeal, he was deemed to have abandoned the appeal by his
acceptance of the conditional pardon which resulted in the finality of his conviction.

Issue:

Whether or not a pardon granted to an accused during the pendency of his appeal from a judgment of
conviction by the trial court is enforceable.

Held:

Section 19, Article VII thereof reads as follows:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of
the Congress.

Where the pardoning power is subject to the limitation of conviction, it may be exercised at any time
after conviction even if the judgment is on appeal. It is, of course, entirely different where the
requirement is " final conviction," as was mandated in the original provision of Section 14, Article IX of
the 1973 Constitution, or "conviction by final judgment," as presently prescribed in Section 19, Article VII
of the 1987 Constitution. In such a case, no pardon may be extended before a judgment of conviction
becomes final.

A judgment of conviction becomes final (a) when no appeal is seasonably perfected, (b) when the
accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing,
except where the death penalty was imposed by the trial court, and (d) when the accused applies for
probation, thereby waiving his right to appeal. Where the judgment of conviction is still pending appeal
and has not yet therefore attained finality, as in the instant case, executive clemency may not yet be
granted to the appellant.

The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution
prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his
appeal from his conviction by the trial court. Any application therefor, if one is made, should not be
acted upon or the process toward its grant should not be begun unless the appeal is withdrawn.
Accordingly, the agencies or instrumentalities of the Government concerned must require proof from
the accused that he has not appealed from his conviction or that he has withdrawn his appeal. Such
proof may be in the form of a certification issued by the trial court or the appellate court, as the case
may be.
The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the
release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal
of an appeal shall render those responsible therefor administratively liable. Accordingly, those in
custody of the accused must not solely rely on the pardon as a basis for the release of the accused from
confinement.

WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty (30) days
from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it
to this Court. The conditional pardon granted the said appellant shall be deemed to take effect only
upon the grant of such withdrawal. In case of non-compliance with this Resolution, the Director of the
Bureau of Corrections must exert every possible effort to take back into his custody the said appellant,
for which purpose he may seek the assistance of the Philippine National Police or the National Bureau of
Investigation. (People vs. Francisco Salle, Jr. and Ricky Mengote, G.R. No. 103567, December 4, 1995)

Laurel vs Garcia

GR 92013 July 25, 1990.

Facts: Petitioners seek to stop the Philippine Government to sell the Roppongi Property, which is located
in Japan. It is one of the properties given by the Japanese Government as reparations for damage done
by the latter to the former during the war.

Petitioner argues that under Philippine Law, the subject property is property of public dominion. As
such, it is outside the commerce of men. Therefore, it cannot be alienated.

Respondents aver that Japanese Law, and not Philippine Law, shall apply to the case because the
property is located in Japan. They posit that the principle of lex situs applies.

Issues and Held:

1. WON the subject property cannot be alienated.

The answer is in the affirmative.

Under Philippine Law, there can be no doubt that it is of public dominion unless it is convincingly shown
that the property has become patrimonial. This, the respondents have failed to do. As property of public
dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated.

2. WON Philippine Law applies to the case at bar.

The answer is in the affirmative.

We see no reason why a conflict of law rule should apply when no conflict of law situation exists. A
conflict of law situation arises only when: (1) There is a dispute over the title or ownership of an
immovable, such that the capacity to take and transfer immovables, the formalities of conveyance, the
essential validity and effect of the transfer, or the interpretation and effect of a conveyance, are to be
determined; and (2) A foreign law on land ownership and its conveyance is asserted to conflict with a
domestic law on the same matters. Hence, the need to determine which law should apply.

In the instant case, none of the above elements exists.

The issues are not concerned with validity of ownership or title. There is no question that the property
belongs to the Philippines. The issue is the authority of the respondent officials to validly dispose of
property belonging to the State. And the validity of the procedures adopted to effect its sale. This is
governed by Philippine Law. The rule of lex situs does not apply.

The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex situs rule
is misplaced. The opinion does not tackle the alienability of the real properties procured through
reparations nor the existence in what body of the authority to sell them. In discussing who are capable
of acquiring the lots, the Secretary merely explains that it is the foreign law which should determine
who can acquire the properties so that the constitutional limitation on acquisition of lands of the public
domain to Filipino citizens and entities wholly owned by Filipinos is inapplicable.